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Christus Lutheran Church of Appleton v. Wis. Dep't of Trans., No. 2018AP1114 (Wis. Apr. 1, 2021)
Christus Lutheran Church of Appleton v. Wis. Dep't of Trans., No. 2018AP1114 (Wis. Apr. 1, 2021)
2021 WI 30
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Carrie A. Schneider
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and HAGEDORN, JJ., joined.
ROGGENSACK, C.J., filed a dissenting opinion, in which ZIEGLER
and REBECCA GRASSL BRADLEY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
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2021 WI 30
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1114
(L.C. No. 2017CV452)
Plaintiff-Appellant, FILED
v. APR 1, 2021
Wisconsin Department of Transportation, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
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year.
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The church was situated 147 feet from the highway prior to
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the partial taking. However, after the taking, the church would
be roughly nine feet away from the right of way.
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not sign and return the enclosed agreement by April 5, 2017, DOT
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to purchase.
offer had expired and the check had already been mailed.
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item for severance damages, which the initial appraisal did not
App 67, ¶2, 389 Wis. 2d 600, 937 N.W.2d 63. The court of
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¶9, 315 Wis. 2d 350, 760 N.W.2d 156. The purpose of statutory
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶44,
III. ANALYSIS
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is required to:
§ 32.05(2)(b);12
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and
§ 32.05(2)(a).13
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compensation" requirement.15
jurisdictional offer, for any reason other than that the amount
of compensation offered is inadequate" and is the "only manner
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(3)(e); and that the appraisal did not value "all property
B. Otterstatter
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its offer by $30,000. Id., ¶7. The City also continued to try
Id., ¶25.
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into the statute." Id., ¶27. The court of appeals also noted
opportunity for negotiation" and that the City "was not required
offer.
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statutes . . . ."). While the legislature did not use the term
shall also state the compensation for the taking which shall be
would have done so. See Pawlowski v. Am. Fam. Mut. Ins. Co.,
2009 WI 105, ¶22, 322 Wis. 2d 21, 777 N.W.2d 67 ("When the
(2021), https://www.merriam-webster.com/dictionary/base
(defining the verb "base" as "to find a foundation or basis for"
and "to make, form, or serve as a base for").
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The
17 third-party appraiser specifically considered
severance damages, but was unable to make the determination
based on the data it had:
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¶32 While Christus and the court of appeals chided DOT for
"was not required to stick with its initial offer based on its
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(3)(e).
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the statute words the legislature did not see fit to write."
Dawson v. Town of Jackson, 2011 WI 77, ¶42, 366 Wis. 2d 318, 801
§ 32.05(2)(a).21
Additionally,
21 the argument that the "statutorily
enumerated items" of damage or loss listed in the just
compensation statute, Wis. Stat. § 32.09, are "property" and
must appear in the appraisal is misplaced. There is no
reference to § 32.09 or "damages" in § 32.05(2)(a)'s "all
property" requirement. Instead, § 32.09(6) dictates that those
items must be "giv[en] effect" in the just compensation
determination, which is not at issue since Christus filed a
right-to-take action.
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The only way for condemnors like DOT to "obtain a new appraisal
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IV. CONCLUSION
reversed.
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742, 349 N.W.2d 661 (1984) (explaining that the rule of strict
2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396 and creates
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I. BACKGROUND
church property.
DOT's ad hoc valuation contained items that were not listed and
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appraiser.
that the church "had more than ample parking" remaining for its
275-seat church.6
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$45,000 for a retention pond that had not been included in the
that was taken, and $14,675 for land acreage. All in all, DOT's
to sell.
Christus Lutheran.9
7 R. at 17-2.
8 Id.
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have the right to condemn its property. Both parties moved for
Appleton v. DOT, 2019 WI App. 67, ¶2, 389 Wis. 2d 600, 937
II. DISCUSSION
A. Standard of Review
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2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret
II, LLC v. DOT, 2006 WI 62, ¶1, 291 Wis. 2d 80, 715 N.W.2d 213
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described.
v. American Family Mut. Ins. Co., 2009 WI 105, ¶22, 322 Wis. 2d
DeLain, 2005 WI 52, ¶17, 280 Wis. 2d 51, 695 N.W.2d 484. A
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the DOT also must provide "a copy of any other appraisal made
(2)(b).
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more than one item of damage to fully compensate the owner. For
may not be the total value of the land that has been taken.
the land taken also may have provided a buffer for the remaining
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narrative appraisal.
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compensate for all items of value that the property taken had
the buffer from the highway right-of-way that the land taken had
buffer and safety barrier that the land DOT is taking had
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offer."20
damages. And, the numbers tell us that the facts did change
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$30,000 higher than the $240,000 appraisal that the City had
court said, "We see nothing in the record that undermines the
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was not based upon the appraisal because they were not equal.
set forth therein, but Otterstatter does not control the outcome
in the case before us. The facts and the focus of the court's
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part of the appraisal as well. When they should have been but
the jurisdictional offer was not based upon the appraisal that
DOT provided. The jurisdictional offer was based upon DOT's own
internal review.22
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Christus Lutheran was told it had the right to get its own
LLC, 2013 WI 77, ¶6, 350 Wis. 2d 242, 833 N.W.2d 764 (explaining
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copy of any other appraisal made under par. (a)." Wis. Stat.
property.
III. CONCLUSION
dissent.
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